Is the expected time recording obligation the death of flexible working hours?
May 2023 update
In April 2023, that is Federal Ministry for work and social affairs has now taken action and has presented a draft bill to amend the Working Hours Act. The aim of future legislative amendments is to create specific regulations regarding the recording of all working hours. According to the current draft bill, the employer is required to Start, end and duration The daily working hours of employees in each case Electronic on the day of work to record.
It is also regulated that the recording can be carried out by employees themselves or by a third party (such as a supervisor). Even in this case, however, the employer remains responsible for proper recording. The corresponding amendments should be decisively amended by an amendment to Section 16 ArbZG be achieved. Violations are considered administrative offenses involving a fine of up to 30,000 euros can be punished.
The Draft speaker amending the Working Hours Act contains staggered transition periods for small, medium-sized and large companies, but only with regard to Form of recording (manual vs electronic), not with regard to the obligation to record working time as such.
For companies with less than 250 employees Does the apply electronic recording only up to two years after the entry into force of the Act, for employers with less than 50 employees upto five years after entry into force;
In small companies with a maximum 10 employees or companies without a permanent establishment in Germany and with up to ten employees posted to Germany, working hours do not have to be recorded electronically for an unlimited period of time.
Important: The draft bill is only a Draft law!
It is not yet known at this stage whether and when these changes will actually come into force. It is therefore entirely possible and not unlikely that the legislator will make further adjustments to the draft.
September 2022 update
In September 2022 Is that Federal Labour Court (“BAG”) With its verdict, the legislator has ruled that a time recording system must be implemented by the employer. This decision is based on an interpretation of the existing Section 3 Paragraph 2 No. 1 ArbSchG.
The recording of working time is therefore valid for all employees to whom the Working Hours Act applies mandatory.
According to the BAG, it is not enough to simply record the start and end of a working day and subtract a lump sum of break time. Even a work schedule or shift schedule does not replace time recording. Instead, the actual hours worked must be recorded. A time recording system must therefore record the start, duration and end of a working day, including breaks and overtime. The time recording must be carried out in such a way that it is comprehensible in the event of a possible check by the authorities.
The Federal Labour Court did not provide detailed requirements as to the form in which working time recording must be carried out.
Since the BAG derives the obligation to record working hours from the Occupational Health and Safety Act, this means that an infringement is not directly subject to a fine. Rather, only the infringement of a previous order issued by the relevant authority would be punishable by a fine.
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Original post:
Trust is good, control is better? It has been clear since 2019: the obligation to record working time is coming. The European Court of Justice (“ECJ”) ruled at the time that all Member States were required to create the legal framework for employers to set up systems for recording working time. However, corresponding laws are still a long way off in Germany.
Here we explain why recording working time is already becoming more important, how you can prepare yourself for an upcoming task and what trust-based working time it means.
The current legal situation
With the ECJ judgement No time recording obligation has been introduced for a long time, as this only represents a requirement for EU member states to enact appropriate laws. So far, however, not much has been done. However, employers are well advised to get used to the obligation to record working time now. When other dishes follow the course of Emden Labour Court and also see an obligation for employers to record working time, employers should not wait for the national legislative change.
In fact, in two rulings, the Emden Labour Court confirmed, based on the ECJ ruling, the direct obligation of employers to introduce a system for recording working hours. In the first case A construction assistant successfully filed a lawsuit for overtime, which he was able to prove with the help of a self-guided overview. In which second judgment (not yet final) The court even awarded an employee EUR 20,000.00 for overtime worked, which she documented in the time recording system provided by the employer. The employer could not successfully claim that it had not checked the recorded times because trust-based working hours apply in the company.
So it remains exciting! Because the trend is clearly towards mandatory recording of working time, as is the Draft bill on mobile work proves.
But what does that mean for trust-based working hours?
If the time recording obligation is imminent soon, many will certainly ask themselves the question:”Do I now have to forego trust-based working hours in my company?”
In the case of the so-called Trust-based working time Traditional recording of working time is dispensed with and employees independently regulate when work should start or stop. Employers often set a time frame and define the necessary availability. Especially in times of the corona crisis, when many employees work from home, flexible working time models, such as trust-based working hours or mobile working increasingly popular, as they allow employees to personalize their working day. This usually benefits employees with children or roommates in particular.
Does the obligation to record working time mean the death of flexible working time models, in particular trust-based working hours?
Not necessarily.
Because initially, a corresponding regulation would only mean that employers are obliged to record and control working hours. This may mean a fundamental change for many companies. In Germany, there is an obligation to record, at least for overtime, even before the ECJ ruling (Section 16 (2) ArbZG).
In addition, trust-based working hours unfortunately not only have advantages.
The actual goal of trust-based working hours is to focus on achieving fixed goals instead of creating pressure by constantly monitoring working hours. In theory, this sounds attractive for employees, because it gives them a generous amount of freedom while sparing the employer the effort.
Unfortunately, things often look different in practice. The focus on work goals increases the responsibility of employees to deliver results independently and on time. It's been proven that this is how it happens to more overtime, which are then usually not covered by the employer. In addition, trust-based working hours often result in employers neglecting their occupational safety obligations, which is not only illegal but can also have serious consequences for workers' health.
An obligation to record working time could counteract this by recording actual hours worked and thus making them more transparent. For example, it can be ensured that rest periods are maintained — there would be less overtime and the agreed goals would be achieved more efficiently. Should overtime still occur, this will be documented accordingly and can be fairly remunerated or compensated with time off. In addition, the employer is thus able to protect against potential lawsuits and expensive penalties.
At the same time, this does not mean that working hours cannot be made flexible. Because an upcoming law would most likely only provide for control.
The ruling is therefore much more likely to offer employees and employers the opportunity to continue trust-based working hours with more security.
How do I prepare myself?
Although appropriate legislation is still a long way off, as has already been shown, preparation is already advisable if you want to prevent legal consequences.
Here's how to be safe:
1. Clear contractual regulations and internal guidelines
In general, it is advisable to check employment contracts to see whether effective clauses relating to Working hours and overtime are formulated.
If necessary, contracts should be amended with an amendment agreement. For example, many employment contracts contain no or inadmissible clauses for the payment of overtime, because a lump sum payment of all overtime with the agreed salary is ineffective. Without a clear definition, there is a risk of disputes or even expensive legal proceedings. Particularly during trust-based working hours, there are not insignificant problems of evidence:
Was overtime required?
Were the times documented by the employee and tolerated by the employer? According to the ruling of the Emden Labour Court, is it even sufficient simply to access the recording of working time?
Auch Trust-based working time can be established contractually, e.g. through formulated reservations which allow the employer to set specific deadlines.
In separate agreements, such as internal guidelines, details of the specific design of various working time models (e.g. on-call service, shift systems, flexitime models) and the type of documentation can be defined, shared with employees and adjusted from time to time.
2. Time recording tool
If framework conditions have been set for (trust) working time and overtime, there is nothing wrong with recording working hours. According to the ECJ, the system must objective, reliable and accessible , which means that it should be transparent for employees and employers and that all working hours, including breaks and overtime, should be recorded.
However, a digital system is certainly more modern and efficient than an analog one. Most HR management tools offer corresponding functions. A positive effect that may not be immediately visible: if working hours (including overtime) are recorded in line with the agreed work goals, feedback rounds, priorities and performance reviews can be established, maintained and jointly optimized in a central system.
3. Raise awareness & communicate transparently
Employers should take this opportunity not only to establish an internal system, but also to brush up on the issue of working time in general, sensitize managers and train them regularly. Compliance with legal requirements and internal agreements leads to greater security and satisfaction. Serious compliance with employer obligations not only minimizes risks, but also reduces health the employee is in focus.
Burnouts, frequent illnesses, corona related and challenging work in the home office, missed breaks and a lack of balance damage the company in the long term, as employees are unbalanced. Even worse, they may even feel taken advantage of when the company neglects occupational health and safety, does not pay overtime and takes their work for granted. Transparent communication and raising awareness of working hours, obtaining feedback and suggestions for improvement from the team and concrete implementation of the “recorded trust-based working hours” ensure a healthy corporate culture. Employees should feel involved and see that their employer takes the issue seriously and thus values their work — this creates trust and strengthens the company's perspective.
It's a win-win.
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